State of New South Wales v Ariesen

[2023] NSWSC 1510

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ariesen [2023] NSWSC 1510

Hearing dates:

1 December 2023

Date of orders:

7 December 2023

Decision date:

07 December 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

I will make the interim orders agreed, imposing the conditions sought by the State, as amended by the conclusions I have reached about the remaining disputed conditions.

I direct the State to prepare and file orders to give effect to the conclusions I have reached by 4 pm today, whereupon they will be entered and adjourn the matter for directions at 9.30am on Thursday, 14 December 2023 before Justice Yehia.

Catchwords:

HIGH RISK OFFENDERS — Extended supervision orders — Whether interim supervision orders should be made — Whether unacceptable risk of committing a further serious sexual offence posed — Assessment of risk — Crimes (High Risk Offenders) Act 2006 (NSW) — Risk assessments of risks posed — History of relevant offending — High degree of probability that defendant does pose an unacceptable risk of committing a serious sexual offence if not kept under the proposed supervision — What conditions of supervision should be imposed — Orders made

Legislation Cited:

Crimes Act1900 (NSW), ss 66DB, 61M(1)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 3(1), 5, 5B, 5(I), 6(1), 7(4), 9, 9(3), 10A, 12,

Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)

Cases Cited:

Lynn v The State of New South Wales [2016] NSWCA 57; 91 NSWLR 636

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Steven Ariesen (Defendant)

Representation:

Counsel:
T Hammond (Plaintiff)
G Heathcote (Defendant)
Solicitors:
Crown Solicitors (Plaintiff)
Proctor & Associates (Defendant)

File Number(s):

2023/204047

Publication restriction:

Nil.

JUDGMENT

1. The State seeks interim supervision orders under the Crimes (High Risk Offenders) Act 2006 (NSW) appointing two qualified psychiatrists and/or psychologists to examine Mr Ariesen; directing him to attend those examinations; subjecting him to an interim supervision order from a date to be fixed; and directing him to comply with conditions ordered for his supervision in the community. He is presently in the community under supervision, on parole.

2. The parties agreed that in Mr Ariesen’s circumstances the Court has jurisdiction to make the orders sought, the statutory requirements for making such orders having been satisfied. There was also no issue about the applicable principles, or the evidence. Mr Ariesen has served part of a sentence of imprisonment imposed on him for a serious sexual offence, as that term is defined in the Act and so is now a supervised offender, as also there defined, having been released to parole in March 2023.

3. On the evidence I am satisfied about all of the matters which go to the Court’s power to make the orders sought and that it should be exercised to make the orders to which Mr Ariesen did not object, on the conditions later explained.

The disputed conditions

4. All that was finally in issue between the parties was some of the conditions of supervision to be imposed on Mr Ariesen. Discussions during the course of and after the hearing resolved some of those issues, but the necessity for and terms of a number of the proposed conditions remain to be resolved.

What the evidence established

5. The State relied on the affidavits of Ms Nichols, a solicitor employed in the Office of the Crown Solicitor, to which were attached numerous relevant documents, which went to various relevant matters.

6. They established that Mr Ariesen was released on parole March 2023, having not yet served all of the sentence imposed for his last two offences of sexually touching a child aged between 10 and 16 years, contrary to s 66DB of the Crimes Act1900 (NSW). These offences had come to light after text messages he had exchanged with his 14-year-old victim came to his sister’s notice. Mr Ariesen was at that time on the Child Protection Register as the result of his earlier offending.

7. Mr Ariesen made admissions during his police interview to having groomed this victim and sexually touching him on a number of occasions. He later pleaded guilty and was sentenced to an aggregate term of imprisonment of three years and six months, with a non-parole period of two years for these offences.

8. Mr Ariesen had earlier been convicted of five counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act for offences committed between September 2002 and February 2004, while employed as a football coach.

9. Two of these offences occurred at this victim’s home and two others at an end of season football camp at Dubbo. The last was committed when the victim stayed overnight at his home.

10. In 2005, Mr Ariesen had also been convicted of three other offences for which he was sentenced to a 5-year good behaviour bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). But in July 2007 he was arrested and charged with nine further counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act, committed between June 2006 and July 2007. These offences occurred at the victim’s homes, his home in the pool, his car and in public at an aquatic centre. These victims were aged 13 to 14 years.

11. Mr Ariesen was then also charged with three counts of failing to comply with the Child Protection Register, having failed to report his access to these children to police, to which he also pleaded guilty. He was sentenced for these offences in February 2008, sentences imposed concurrently and cumulatively.

12. In custody Mr Ariesen completed various programs, including the High Intensity Sex Offenders program, completed in February 2023.

13. The December 2022 Risk Assessment Report of Ms Cieplucha, a senior psychologist employed in the serious sex offenders assessment unit, referred to her interview with Mr Ariesen and explained:

1. her conclusion that he met the diagnostic criteria for paedophilic disorder, having a preferential attraction to prepubescent males; recurrent major depressive disorder with melancholic features; and falling into the borderline range of intellectual functioning;

2. the results of various risk assessments, using identified tools, which were:

i. LSI-R: Low/Medium

ii. STATIC-99R: Above Average Risk (Level IVa)

iii. STABLE-2007: Moderate density of criminogenic needs.

3. that other tools identified his risk factors to be:

i. Chronicity of sexual violence, deviant sexual preference and

psychological coercion.

ii. Problems with intimidate and non-intimidate relationships and emotional identification with children.

iii. General social rejection/loneliness.

iv. Problems with Mental Health, Stress and Coping and problem solving.

v. Problems with treatment.

vi. Problems with supervision.

vii. Problems with employment.

4. Mr Ariesen’s most likely risk scenario for future offending was sexual touching of prepubescent boys known to him aged 7-14 years, involving the use of a degree of psychological coercion or grooming.

14. In her supplementary November 2023 report Ms Cieplucha reviewed a treating therapist’s assessment that Mr Ariesen presented a high density of criminogenic needs. She concluded that he then fell within the well above average risk range of further serious offending.

15. Earlier psychologist and risk assessment reports were also in evidence, from 2004, 2005, 2008, 2009 and 2021. While early reports assessed Mr Ariesen as presenting a low likely risk of recidivism, that proved inaccurate and later reports noted his continuing sexual interest in young boys. His risk assessment altered to a moderate risk and in 2008 antilibidinal medication was suggested. In 2009 he was assessed to pose a high risk of reoffending and in 2021 it was considered that his depression was having an adverse impact on his decision making and ability to resist his intrinsic deviant paedophilic urges around boys.

16. Various case notes and Corrective Services and Parole Authority documents were also in evidence, as was Mr Ariesen’s criminal record.

17. On the evidence Mr Ariesen has maintained employment since his release on parole, consistent with the support he has in the community and his good employment history. A Child Protection Order remains in force for five years from 14 April 2023. But such an order has not in the past prevented his further offending against children to whom he is sexually attracted.

18. Also in evidence is an affidavit sworn by Mr Ariesen’s stepfather. His mother and stepfather have visited him since his release and they continue to support him. His evidence was that Mr Ariesen understood that he would be subject to an interim supervision order and that conditions would be imposed which he would be required to observe. He also agreed to attend the proposed examinations.

The statutory requirements are satisfied

19. On the evidence I am satisfied that all the relevant requirements for the making of the proposed orders are satisfied.

20. Mr Ariesen is a ‘supervised offender’ as defined: s 5(I) and the application for the orders sought were made within the time specified: s 6(1). He was then an offender who had not completed his sentences for the serious sex offences of which he was convicted: ss 12 and 5. His sentence does not expire until 22 December 2023.

21. It follows that the Court does have the power to make an order for his interim supervision, if satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious offence if not kept under supervision: s 5B. That term has to be understood in the way explained in Lynn v The State of New South Wales [2016] NSWCA 57; 91 NSWLR 636. This requires the Court to undertake an evaluative task, in the context of the objects of the Act: s 3.

22. They include the primary object of providing for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders to ensure the safety and protection of the community: s 3(1).

23. Consideration of whether there is a high degree of probability that Mr Ariesen poses an unacceptable risk of committing a serious offence if not kept under supervision thus requires consideration to be given to the evidence of the particular risks which he poses.

24. The test for the making of a preliminary order is specified in s 7(4) to be satisfaction “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”. Otherwise, the application must be dismissed. A preliminary order may be made under s 10A where:

(a) the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

25. There was no issue that all of these requirements were satisfied in Mr Ariesen’s circumstances, nor that giving appropriate weight to risk avoidance in his case, would result in the making of the proposed orders. What was in issue was whether some of the conditions proposed were required, particularly given the time that he had now been in the community on parole without breach of the conditions which attach to it.

26. In resolving these issues Mr Ariesen’s right to personal liberty at the expiration of his sentence is not relevant to the determination of whether he poses the required risk. But that is relevant to the conditions to be imposed upon him, they arising to be considered in the context of the requirements of s 9.

27. Section 9(3) specifies the matters which must be considered to be:

(b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

The orders sought must be made

28. Having considered the statutory requirements in light of the evidence, I am satisfied that interim orders must be made in Mr Ariesen’s case, being satisfied to a high degree of probability that he does pose an unacceptable risk of committing a serious sexual offence if not kept under the proposed supervision.

29. Mr Ariesen’s repeated offending over the course of many years against similarly aged young boys in whom he has an ongoing sexual interest, his past failures to comply with his child reporting obligations and the above average risk he has been recently assessed as posing of further such serious offending, make that conclusion unavoidable.

30. It is relevant to this conclusion that Mr Ariesen’s most recent offences were found to have fallen into the mid level of seriousness, given his degree of deliberation, attempts to cover his tracks and the inevitable degree of real harm which his young victims suffered as a result of what he did to them. That is also relevant to the resolution of what lies in issue about the proposed conditions, which require consideration to be given to the fact that his offences were committed in public and private and that what led to his offending included grooming behaviour and the use of pornography.

31. While Mr Ariesen’s behaviour in custody has been exemplary and he has been complying with his conditions of parole, in the past during unsupervised release his behaviour has been entirely different.

32. The result is that I am satisfied from his now long history of concerning repeated offending against similarly aged young victims, his most recent serious offending and the assessment of the risk which he now poses, consistent with other earlier psychological assessments and the risk management report prepared by Ms Dodd, a community corrections officer, in January 2023, that the interim orders sought must be made.

33. The risk Mr Ariesen poses appears to have increased over time, that explaining recommendations made about antilibidinal medication, given his ongoing attraction to young boys, and inability to establish appropriate adult relationships and feelings of social rejection and isolation. That progress while he has been in the community has been noted since his release on parole and that he is in employment are amongst the positive signs which arise for consideration. Nevertheless, on all the evidence this cannot displace or address the evidence which establishes that Mr Ariesen presently poses the relevant unacceptable risk.

34. I am thus satisfied that there is now a proper basis for the conclusion that there is a high degree of probability that Mr Ariesen poses an unacceptable risk of committing a serious offence if he is not kept under supervision, as the interim order proposes.

The disputed conditions

35. Mr Ariesen’s case in relation to conditions he disputed was that it was relevant that he was eligible for parole in June 2022 and since his release in March 2023 has complied with all the conditions of his parole and that he also has the ongoing support of his parents, partner and adult stepson.

36. That would support the conclusion that he does not require the more stringent conditions of supervision which remained in issue.

37. That was disputed by the State. The parties addressed the individual conditions which remained in dispute at the hearing, with the result that what was disagreed was reduced even further afterwards. They provided an amended conditions list which identified what remained in issue and addressed what remained between them.

38. I have resolved those issues as follows.

Schedule of movements

39. The conditions finally proposed were:

Schedule of Movements

5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

40. These conditions were opposed, it being urged that given that electronic monitoring was to continue, the Court would accept that supervision would be sufficient to manage the risk Mr Ariesen posed. It was observed that during his parole he had twice triggered an alert when he travelled along the border of his exclusion zone, but on investigation it had been accepted that there had been no breach of his conditions.

41. It was submitted that Mr Ariesen was very scared of a return to prison and was thus very careful to comply with his conditions of parole. Having provided his movements in advance for some 9 months, the Court was urged to accept that electronic monitoring was now sufficient in his circumstances and that the schedule of movements was not necessary to mitigate the risk he posed.

42. The State’s position remained that the conditions as to electronic monitoring and the schedule went hand in hand, as documents in evidence about the operation of the conditions explained. There are four stages of such monitoring, which are reviewed twice monthly, with the aim that they can be relaxed over time, reflective of the supervised person’s conduct.

43. Given the nature of Mr Ariesen’s past history of grooming his victims and offending in public places as well as private ones, it was considered that it was vital initially to know his whereabouts, given that exclusion zones would be put in place. The schedule also permitted random or covert surveillance if that became necessary. But it was hoped that the schedule would assist Mr Ariesen self-manage his behaviour, so that there could be incremental reduction in his supervision. What was proposed also permitted flexibility, so that late changes in the schedule could be approved, if something unanticipated occurred.

44. Given the nature and history of Mr Ariesen’s offending and the risks which he continues to pose, on all the evidence I have discussed, despite his compliance with his parole conditions over 9 months I am not satisfied that at this interim stage the conditions proposed are not sensibly required, in order to manage that risk in the community.

40. Accordingly, these conditions will be imposed.

Accommodation

46. The conditions the State pressed were:

Part B: Accommodation

9. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.

10.   …

11. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

12. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

47. Conditions 11 and 13 were opposed.

48. What was proposed for condition 11 was only twice monthly inspections, other means of inspecting the premises such as search warrants being available to the State. An amendment for a further search on reasonable suspicion was also proposed:

THE DEFENDANT MUST ALLOW A DSO TO VISIT HIM AT HIS APPROVED ADDRESS AT ANY TIME AND FOR THAT PURPOSE TO ENTER THE PREMISES AT THAT ADDRESS, BUT NO MORE THAN 2 TIMES PER MONTH UNLESS SPECIFIC CONCERNS SHOWN TO SITUATION.

49. I do not accept that a search of the premises should require a search warrant, given the risk which Mr Ariesen poses. Nor do I consider at this interim stage that inspection should be restricted to twice monthly unless there is a reasonable suspicion of further offending.

50. Given the nature of Mr Ariesen’s past offending, inspections should not sensibly await the formation of a suspicion that he has further offended. After all, the purpose of his ongoing supervision is to help prevent further serious offending, given the unacceptable risk he has been found to pose. If it is considered that his conduct warrants more than twice monthly inspections, that should be permitted.

51. The meaning of the alternative words proposed is also unclear and not ones which I am prepared to impose.

52. What was proposed for condition 13 was to exempt from that condition a list of preapproved persons, the alternative wording being:

THE DEFENDANT MUST PROMPTLY NOTIFY A DSO OF ANY VISITOR, WITH THE EXCEPTION OF….. ENTERING AN APPROVED ADDRESS AND NOT PERMIT ANY PERSON TO STAY OVERNIGHT WITH THE EXCEPTION OF ….. AT HIS APPROVED ADDRESS

53. I do not consider this amendment to be necessary. The wording proposed by the State would permit a DSO approving specified person staying overnight on more than one occasion, so that further approval being sought on each occasion that they stay overnight may not be required. I consider this condition could be improved, however, by the addition of the introductory words, “if directed”. That would permit prior approval of specified persons visiting Mr Ariesen, without notification on each occasion that they do. Condition 13 will thus provide:

13. If directed, the defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Place and Travel

54. Proposed conditions 16 and 17 provide:

16. The defendant must not frequent or visit any place or district specified by a DSO.

17. Without limiting condition 18 above, the defendant must not go to any of the following without the prior approval of a DSO:

a. Day-care centres, pre-schools and schools;

b. Amusement parlours, amusement parks and theme parks;

c. Cinemas;

d. Libraries and museums;

e. Camping grounds and caravan parks;

f. Children's playgrounds, parks, and areas with play equipment provided for the use of children;

g. Pools, playing fields and sporting facilities;

h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; and

i. Residences where the defendant knows that persons aged under 18 years ordinarily reside.

55. Condition 17 is disputed. Mr Ariesen seeks an explicit exemption to this condition for when he is in the company of one of five specified persons when attending Cinemas, Libraries and Museums, Theatre Shows or Playing fields and theme parks.

56. This was opposed by the State, which contended that the Court’s orders should not name individuals, the assessment of their suitability for various matters arising to be considered under the conditions being already considered and there not being a sufficient basis for the Court to undertake such an assessment itself.

57. I agree.

58. There is no evidentiary basis for the exemption sought and I do not consider it appropriate that any persons be named in the Court’s order. That could only have impractical consequences best avoided. For example, if circumstances arose which would reasonably lead to the conclusion that one of them was no longer an appropriate person to be exempted. Amendment to the order to remove such a person would then require a further application to the Court, at undesirable additional expense and effort.

59. In any event, given the nature of Mr Ariesen’s past offending in public and private, even while in the vicinity of others, decisions about his visiting the specified places cannot sensibly be made by the Court, even if accompanied by the people he has nominated.

60. Further, the condition the State proposes already permits, for example, prior approval of Mr Ariesen taking up a team sport with a nominated person. But such approvals cannot sensibly be considered or determined by the Court on an application such as this, especially when it does not have the necessary evidence to consider.

Search and seizure

61. The conditions proposed are:

Part J: Search and seizure

39. The defendant must submit to the search by his DSO, or a person authorized by his DSO, of any item or place in his possession or under his control including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

40. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.

62. Condition 39 is opposed by Mr Ariesen, he again maintaining that this search right should be limited to two searches per month, except on reasonable suspicion, given that search warrants are available.

63. Again, I do not accept the proposed limitation. For the reasons already explained I do not accept, given his past record of offending and the unacceptable risk that he poses, that the searches which the proposed condition permits can now sensibly be confined in this way.

Orders

64. For these reasons I will make the interim orders agreed, imposing the conditions sought by the State, as amended by the conclusions I have reached about the remaining disputed conditions.

I direct the State to prepare and file orders to give effect to the conclusions I have reached by 4 pm today, whereupon they will be entered and adjourn the matter for directions at 9.30 am on Thursday, 14 December 2023 before Justice Yehia.

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Decision last updated: 08 December 2023